Winter v. Supreme Lodge Knights of Pythias

• Decision Date: 06 August 1902
• Citation: 69 S.W. 662,96 Mo.App. 1
• Parties: LENA WINTER, Respondent, v. SUPREME LODGE KNIGHTS OF PYTHIAS, Appellant
• Court: Missouri Court of Appeals

69 S.W. 662

96 Mo.App. 1

LENA WINTER, Respondent, v. SUPREME LODGE KNIGHTS OF PYTHIAS, Appellant

Court of Appeals of Missouri, St. Louis

August 6, 1902

Appeal from St. Louis City Circuit Court.--Hon. Seldon P. Spencer Judge.

REVERSED.

Reversed and remanded.

Carlos S. Hardy and R. P. & C. B. Williams for appellant.

(1) An absentee shown not to have been heard of for seven years by persons who, if he had been alive, would naturally have heard of him, is presumed to have been alive until the expiration of such seven years, and to have died at the end of that term. Lawson on Presumptive Evidence, p. 251; Kanz v Great Council, 13 Mo.App. 341; Lancaster, Adm'r v. Ins. Co., 62 Mo. 128; Hancock v. Ins. Co., 62 Mo. 32. (2) In order to overcome the presumption of life until the end of the seven-year period, it is necessary to show one of two states of facts: first, that when last heard from he was in contact with some specific peril likely to produce death; or, second, that he disappeared under circumstances inconsistent with a continuation of life, when considered with reference to those influences and motives which ordinarily control and direct the conduct of rational beings. Lancaster Administrator v. Ins. Co., 62 Mo 128. (3) In the absence of any fact, except that of the absence of a person for seven years without having been heard from, the presumption is that such person died on the last day of the seven years. Kanz v. Great Council, 13 Mo.App. 341; Whiting v. Nichol, 46 Ill. 230; Reedy v. Miligen, 155 Ill. 636; Bailey v. Bailey, 36 Mich. 181; Smith v. Knowlton, 11 N.H. 191. (4) Evidence of death within seven years need not be direct or positive; it may depend upon circumstances, but the circumstances should be of such a character as to make it more probable that the person died at a particular time, than that he survived. Hancock, Adm'r, v. Life Ins. Co., 62 Mo. 32. (5) The fact that there is a legal presumption of death where a person has been absent and unheard of for seven years, was irrelevant in this case. Clark v. Canfield, 15 N. J. (Eq.) 119; Burr v. Sim, 4 Whart. 150; Seeds v. Grand Lodge of Iowa, 61 N.W. 411. (6) "Due notice and proof of death" means, that such notice and proof of death must be furnished within a reasonable time. Carpenter v. Ins. Co., 31 N.E. 1015. (7) The secretary of the section in this case was a special agent, with limited power, and he had no authority to waive notice and proof of death. Harvey v. Grand Lodge, 50 Mo.App. 472; Boergrafe v. Supreme Lodge, 22 Mo.App. 127. (8) Plaintiff can not claim that she did not know the limits of the secretary's powers, as every member of a benefit society is conclusively presumed to know its laws. Harvey v. Grand Lodge, supra; Coleman v. Knights of Honor, 18 Mo.App. 189; Grand Lodge v. Elsmer, 26 Mo.App. 108; Bacon Benefit Societies, sec. 157.

Lee W. Grant and Pierre B. Kennedy for respondent.

(1) "In relation to the presumption of death arising from mere absence, the rule of common law is well established. Where a party is absent seven years without having been heard of, the only presumption then arising is that he is dead; there is none as to the time of his death--as to whether he died at the beginning or at the end of any particular period during those seven years." Hancock, Adm'r, v. Ins. Co., 62 Mo. 26. This is a clear and lucid statement of the rule at common law, and that rule has never been changed in this State. In the same case, page 31, the court says: "All the authorities agree that when a party has been absent seven years since any intelligence has been received of him, he is, in contemplation of law, dead. This length of time may be abridged, and the presumption applied earlier than seven years by showing special facts and circumstances which reasonably conduce to that end." To the same effect, citing Taylor, Stephen, and Greenleaf on Evidence: "Although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death." Davis v. Biggs, 97 U.S. 628. (2) It is allowable to show that the party died before the expiration of the seven years, if there is evidence tending to prove that death occurred at an earlier date, or showing a greater probability of death than life at the prior date. To do so, however, it is not indispensable that the proof offered for that purpose should show the missing person subject to a specific peril at a particular time. It is enough to produce evidence of any other circumstances calculated to shorten or destroy life before the lapse of seven years. Carpenter v, Legion of Honor, 79 Mo.App. 597; Teasdale v. Ins. Co., 26 Iowa 107; Biegler v. American Legion of Honor, 57 Mo.App. 419; Dickens v. Miller, 12 Mo.App. 408. (3) The secretary of a section is the agent of the supreme body and not of the member, and this is so even though the by-laws provide that he is the agent of the member. Supreme Lodge v. Withers, 177 U.S. 260; Modern Woodmen v. Tevis, 111 F. 113; Knights of Pythias v. Bridges, 15 Tex.Civ.App. 196. (4) The acts and statements of a local agent may amount to a waiver of the necessity to furnish proof of loss. Nickell v. Ins. Co., 144 Mo. 420; approved in James v. Mutual R. F. L. Ass'n, 148 Mo. 1.

BARCLAY, J. Bland, P. J., concurs; Goode, J., dissents.

OPINION

BARCLAY, J.

Plaintiff was the wife of Gustave Winter. She sues on a certificate of membership, in the nature of a policy of insurance for $ 2,000, issued by the Supreme Lodge, Knights of Pythias of the World. The latter is a fraternal society, incorporated under an act of Congress. The branch or department of the society which conducts the business of insurance is called the "endowment rank." It is managed by a board of control, which deals with the insured members through branches or subdivisions called "sections." The laws, rules and regulations of the defendant require monthly payments to be made upon his certificate by each holder. These installments in the nature of premiums or dues are payable to the secretary of the section to which the member belongs and are remitted by him to the fiscal officer of the supreme lodge or of the board of control. The monthly payments of the insured are due on the first day of each month without other notice. A failure of the insured to make the proper payment on or before the tenth day of any month subjects the delinquent member to a forfeiture of his certificate or of his interest therein, unless he be reinstated afterwards upon conditions which need not be recited.

Another feature of the regulations of the society to be noted concerns the proof of death. On that point the by-laws of the society, in force at the time when plaintiff's claim was presented, provide as follows:

"Section 1. The proof of death shall in all cases be made by the beneficiary or beneficiaries on blank forms to be furnished by the board of control, and shall contain affidavits of the attending physician or physicians, the undertaker who officiated, the master of finance as to standing of deceased in the subordinate lodge at the time of death; and from such other person or persons as may be required; affidavits to be made before the officer authorized to take affidavits, and such authority must be certified to by the clerk of a court of record, or other competent authority, under seal.

"Section 2. All necessary legal papers required, in order to secure the proper payment of benefits, must also be furnished by the beneficiary or beneficiaries, and shall be forwarded with the proof of death to the board of control by the secretary of the section."

The certificate which Winter had in the endowment rank was issued in 1885 upon surrender of an older certificate in a different class, taken by him in 1879. He paid all required dues and assessments thereon until and including January, 1894. A payment was afterwards made on his account in February, of that year, which kept the certificate in force to March 10, 1894, after which time it was contended by defendant that the certificate became forfeited under the by-laws of the order. That contention will be conceded for the purposes of this appeal only, subject to the important qualification which is to be discussed in the course of this opinion, the gist of which qualification is found in plaintiff's claim that Winter died before March 10, 1894.

The pleadings require little notice. The petition counts upon the certificate (expressed to be payable to plaintiff), compliance of the insured with the laws and rules of defendant in respect of payments, etc., and the death of the insured on or about January 18, 1894. It further alleges due notice and proof of death given to defendant and makes an offer to surrender the certificate on payment of the amount due, $ 2,000.

The answer, after the admission of formal allegations and of the issue of the certificate, pleads certain laws already mentioned governing the order and it charges that the certificate has become void for failure of the insured to pay the dues thereon after the month of February, 1894. It sets up as further defenses that no notice of death or proofs of loss were given to defendant within a reasonable time after the alleged death, and that said proofs were not tendered until shortly before this suit, in 1901.

The reply of plaintiff alleged the facts which are claimed to constitute a waiver by defendant of the notice and proofs of loss. These facts will be shown in the course of the opinion.

The trial was had with the aid of a jury.

At the opening of the trial it was admitted that Winter was in good standing in the endowment rank of defendant until March 10, 1894; that nothing was paid on account of his certificate after that date.

The certificate...